Law Dor v. The National Insurance Co Ltd
Read the full judgment text of HCA 2003/1976 on BabelCite. This High Court CFI judgment.
1. This action raised two short points of law. It is thought that they may be of general interest and I have been asked accordingly to record written reasons for my conclusions.
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HCA002003/1976 IN THE SUPREME COURT OF HONG KONG HIGH COURT ACTION NO.2003 OF 1976 -----------------
----------------- Coram: Cons, J. Date of Judgment: 14th February, 1977. ----------------- JUDGMENT ----------------- 1. This action raised two short points of law. It is thought that they may be of general interest and I have been asked accordingly to record written reasons for my conclusions. 2. The first question is whether a learner driver is covered by the usual proviso in motor insurance policies when he is driving without "L" plates affixed to his motor-cycle. The proviso is as follows:
3. This question is already covered by authority in this jurisdiction: Lee Shiu-ting v. Reg.(1) and Chan King-lam v. Reg.(2). The learner driver is not covered. The laws and regulations do not permit him to drive in that manner. They expressly prohibit him. 4. Both these cases were derived from criminal prosecutions for driving without insurance cover. The decisions were those of single judges of this court on appeal from the magistrate. No attempt has been made to distinguish them as such but it is suggested that a different principle should be applied in civil cases from that applied in criminal. No reason has been advanced why this should be so. 5. There is a decision of an English County Court in a civil case which goes the opposite way: Rendlesham v. Dunne(3). The judge described the contention accepted here a year later as "surprising". It may be that the nature of a provisional licence in England or the law relating thereto is different from ours. I do not know. It is sufficient to say that the decision was shown to the court in the latter of the two cases I have just mentioned and that the court rejected it in favour of the earlier. I am content to do likewise. 6. The second question is not covered by authority. The plaintiff was injured by the motor-cycle in January 1973. A notice under s.10(2) (a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, was sent to the appropriate insurance company in the August. In December an action against the owner and driver was started in the Victoria District Court. That action was discontinued two years later, but a second action was started almost immediately in the same court. Eventually judgment was given in favour of the plaintiff. No fresh notice under the Motor Vehicles Insurance (Third Party Risks) Ordinance was given either before or after the commencement of the second action. The question is whether the notice given before the first action was sufficient to cover the second. 7. Section 10 of the Ordinance makes an insurance company liable to meet judgments in certain circumstances and then provides in subsection 2(a):
8. It is the use of the word "before" that allows the question to arise. If the notice is given after the commencement of the proceedings the notice will naturally specify the court in which the proceedings are brought and the particular number of the action. Then it cannot possibly be said to cover any subsequent or different action. It will operate as to that particular action alone. But if the notice is given before the proceedings are commenced there is no action yet in existence as to which it can operate. That must wait until some particular action is started. The plaintiff submits that once a notice is given it will continue to operate as to any action that is subsequently started, even where, as in this case, there is more than one. The insurance company submits that this cannot be so. It is illogical, it says, to say that there has been notice of "the proceedings in which the judgment was given" when the notice was so obviously given in the proceedings which were discontinued. In my view that is the better opinion. The notice must be taken to operate as to the first action brought subsequently and is thereafter spent. This view is more consistent with what I take to be the general intention of the section, that the insurance company should be informed of what the plaintiff is doing, so that it should not be taken by surprise. Representation: Michael Asome (Director of Legal Aid) assigned for the plaintiff. Richard Mills-Owens (Johnson, Stokes & Master) for the defendant. (1) [1965] H.K.L.R. 1140 (2) [1972] 2 H.K.L.J. 233 (3) [1964] 1 L1.L.R. 192 |